Samuel Verdin v. Kathleen Alison

• Court: District Court, C.D. California
• Decided: December 30, 2024
• Docket: 5:22-cv-00597
• Status: Unknown

Opinion

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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 SAMUEL VERDIN, Case No. ED CV 22-00597-DMG 11 Plaintiff, (SSC) 12 v. ORDER ACCEPTING 13 KATHLEEN ALLISON, et al., FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF 14 Defendants. UNITED STATES 15 MAGISTRATE JUDGE 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed all of the 18 records herein, the Report and Recommendation of United States 19 Magistrate Judge, and Plaintiff Samuel Verdin’s Objections to the 20 Report and Recommendation. The Court has engaged in a de novo 21 review of those portions of the Report and Recommendation to which 22 Plaintiff has objected. 23 In this prisoner civil rights action, the Report and 24 Recommendation (“Report”) recommends dismissal of Plaintiff’s third 25 amended complaint with leave to amend only an Eighth Amendment 26 claim for delayed and/or inadequate medical care. [Doc. # 32.] 27 Plaintiff’s objections to the Report [Doc. # 35] do not warrant a change 1 Plaintiff objects that the Magistrate Judge seems “hostile to 2 Plaintiff’s claims.” Id. at 3. To the extent that Plaintiff is alleging 3 judicial bias, this conclusory objection fails to establish it. See United 4 States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995) 5 (“mere conclusory allegations” are “insufficient to support a claim of 6 bias or prejudice such that recusal is required”) (citing United States v. 7 Sibla, 624 F.2d 864, 868 (9th Cir. 1980)); Yagman v. Republic 8 Insurance, 987 F.2d 622, 626 (9th Cir. 1993) (mere speculative 9 assertions of invidious motive are insufficient to show judicial bias). 10 Plaintiff objects that Defendants are not mere prison officials but 11 instead are peace officers under California law and, therefore, are not 12 “entitled to the commonly held deferential standards afforded to prison 13 officials/staff under the Eighth and Fourteenth Amendments.” [Doc. # 14 35 at 3–5.] This objection does not undermine the Report’s review 15 under the applicable standards for Plaintiff’s Eighth and Fourteenth 16 Amendment claims. For his Eighth Amendment claim, Plaintiff was 17 required to provide allegations that would “objectively show that he was 18 deprived of something sufficiently serious [and] make a subjective 19 showing that the deprivation occurred with deliberate indifference to 20 the inmate’s health or safety.” ([Doc. # 32 at 5 (quoting Lemire v. Cal. 21 Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013).) For his 22 Fourteenth Amendment claim, Plaintiff was required to provide 23 allegations that would show more than the mere “denial of an inmate’s 24 grievances.” (Id. at 27. Under these applicable standards, Plaintiff’s 25 allegations were insufficient. 26 Plaintiff objects that his state law claims are not barred in an 27 action under 42 U.S.C. § 1983. [Doc. # 35 at 5–7.] As the Report found, 1 [Doc. # 32 at 17 (citing Barry v. Fowler, 902 F.2d 770, 772 (9th Cir. 2 1990).] Although Plaintiff attempts to distinguish Barry [Doc. # at 5–6], 3 the Report’s reliance on it was proper. Under § 1983, “in order to 4 prevail [Plaintiff] must . . . prove deprivation of a federal constitutional 5 or federal statutory right.” Barry, 902 F.2d at 772. An alleged violation 6 of state law does not suffice. See id. And although Plaintiff makes a 7 related argument about supplemental jurisdiction of his state tort 8 claims [Doc. # at 6–7], the Report properly found that “the Court should 9 not exercise pendent jurisdiction over them in light of the 10 recommendation that all of Plaintiff’s COVID-19 related Eighth 11 Amendment claims be dismissed.” [Doc. # at 17 (citing Gini v. Las 12 Vegas Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994).] 13 Plaintiff objects that Defendants’ response to the risks of COVID- 14 19 was not reasonable. [Doc. # 35 at 7–9.] The objection does not 15 undermine the Report’s finding that Plaintiff did not plead facts 16 “showing the unreasonableness of the measures allegedly employed to 17 attempt to mitigate the effects of a fast-moving and fast-evolving 18 pandemic in an institutional setting, particularly given the 19 contemporary uncertainty regarding not only the nature of the virus but 20 also the efficacy of various containment or mitigation strategies.” [Doc. 21 # 32 at 10 (citing Hall v. Allison, 2022 WL 3013162, at *11 (C.D. Cal. 22 July 18, 2022), and similar cases).] And although Plaintiff also objects 23 that there was supervisory liability [Doc. # 35at 8], he has not alleged 24 that any supervisors “were personally involved in, or ‘culpable for action 25 or inaction, in supervision or control of [their] subordinates, acquiesced 26 in Plaintiff’s alleged constitutional deprivation, or showed a reckless or 27 callous indifference to Plaintiff’s rights.’” [Doc. # 32 at 14 (quoting 1 McKissick v. Gastelo, 2021 WL 6617389, at *6 (C.D. Cal. Aug. 20, 2 2021).] 3 Plaintiff objects that tort-like acts by government actors, no 4 matter the source of law, can be remedied under 42 U.S.C. § 1983. 5 [Doc. # 35 at 9–10.] This objection does not overcome the Report’s 6 determination that violations of state law are not cognizable and that 7 the Court should not exercise pendent jurisdiction over Plaintiff’s state 8 tort claims in light of the dismissal of the COVID-19 related Eighth 9 Amendment claims. [Doc. # 32 at 17.] 10 Plaintiff objects that his allegations regarding treatment for his 11 injuries incident to his recreational activities were, contrary to the 12 Report’s finding, more than threadbare. [Doc. # 35 at 10–11.] This 13 objection does not overcome the Report’s finding that Plaintiff failed “to 14 state when, to whom, or by what means such ‘requests’ [for medical 15 treatment] were made.” [Doc. # 32 at 24.] Nevertheless, Plaintiff will 16 have an opportunity to raise this claim in a fourth amended complaint 17 because it is not readily apparent that he cannot allege a constitutional 18 violation. Id. at 26. 19 Plaintiff objects that his due process claim was adequately stated 20 on pages 11 to 12 of the third amended complaint. [Doc. # 35 at 11.] On 21 these pages, Plaintiff alleges he filed several grievances regarding 22 inadequate treatment. [Doc. # 30 at 11–12.] This allegation does not 23 undermine the Report’s finding that “[a] prison official’s denial of an 24 inmate’s grievances, without more, cannot serve as a basis for § 1983 25 liability.” [Doc. # 32 at 27 (citing Ramirez v. Galaza, 334 F.3d 850, 860 26 (9th Cir. 2003) (“inmates lack a separate constitutional entitlement to a 27 specific grievance procedure”) and similar cases).] l The Court accepts the findings and conclusions of the Magistrate 2 | Judge in the Report and Recommendation. 3 IT IS ORDERED that as to the third amended complaint: (1) all 4 | state law claims are dismissed without leave to amend but without 5 | prejudice; (2) all federal claims except Plaintiff's Eighth Amendment 6 | claim for delayed and/or inadequate medical care are dismissed with 7 | prejudice and without leave to amend; and (3) the Eighth Amendment 8 | claim for delayed and/or inadequate medical care is dismissed with 9 | leave to amend. 10 Within 30 days of this order, Plaintiff may file a fourth amended 11 | complaint containing only an Eighth Amendment claim for delayed 12 | and/or inadequate medical care that remedies the deficiencies outlined 13 | in the Report and Recommendation which has been adopted by this 14 | Court. 15 16 | DATED: December 30, 2024 17 18 Dn . 19 DOLLY M. GEE 50 CHIEF UNITED STATES DISTRICT JUDGE

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